Citation Nr: 1706479
Decision Date: 03/02/17 Archive Date: 03/16/17
DOCKET NO. 09-03 189 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan
THE ISSUES
1. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to September 17, 2008 and in excess of 50 percent thereafter.
2. Entitlement to a total disability rating based on individual unemployability (TDIU).
REPRESENTATION
Appellant represented by: Vietnam Veterans of America
WITNESSES AT HEARINGS ON APPEAL
The Veteran and his significant other
ATTORNEY FOR THE BOARD
J. Henriquez, Counsel
INTRODUCTION
The Veteran served on active duty from August 1967 to December 1968.
These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.
During the pendency of the appeal, a rating decision in January 2009 granted a 50 percent rating for PTSD, effective September 17, 2008.
These matters have been previously remanded by the Board ini May 2010, March 2011, January 2012, November 2014, and December 2015.
In March 2010, the Veteran testified before a Veteran's Law Judge (VLJ). A transcript is of record. In January 2011, the Board advised the Veteran by letter that the VLJ who conducted the March 2010 hearing was no longer employed by the Board and that he had the right to another hearing by a VLJ who would decide the appeal. In February 2011, the Veteran requested another Board hearing and the case was remanded in March 2011 to schedule the hearing. In September 2011, the Veteran testified before the undersigned VLJ. A transcript of the hearing is of record.
FINDINGS OF FACT
1. Prior to September 17, 2008, the Veteran's PTSD was not productive of functional impairment comparable to occupational and social impairment with reduced reliability and productivity.
8. From September 17, 2008, the Veteran's PTSD was not productive of functional impairment comparable to occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood.
3. The Veteran's service-connected disability (PTSD) has not rendered him unable to secure and follow a substantially gainful occupation.
CONCLUSIONS OF LAW
1. The criteria for an initial rating in excess of 30 percent for PTSD prior to September 17, 2008, have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2016).
2. The criteria for a rating in excess of 50 percent for PTSD from September 17, 2008, have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2016).
3. The criteria for establishing entitlement to TDIU have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 4.16 (2016).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). However, this appeal stems from the initial rating assigned following the award of service connection. As such, there is no duty to provide further notice pursuant to 38 U.S.C.A. § 5103A. 38 C.F.R. § 3.159(b)(3).
VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claims, and as warranted by law, affording VA examinations. As noted above, this claim was last remanded by the Board in order to obtain outstanding VA and private treatment records and records from the Social Security Administration. The requested records have been associated with the claims file. The Board finds that there has been substantial compliance with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the Veteran, as a matter of law, the right to compliance with the remand orders).
For the above reasons, the Board finds that VA has fulfilled its duties to notify and assist the Veteran. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the claim.
Analysis
Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7.
Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008).
The Veteran's PTSD was assigned a 30 percent initial rating effective from November 22, 2006. As noted above, a rating decision in January 2009 assigned a 50 percent staged initial rating effective from September 17, 2008, based on a private treatment provider's statement that the Veteran's PTSD symptoms were noted to have increased in severity on this date.
The Veteran's PTSD is evaluated under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9411. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002).
A 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411.
A 50 percent evaluation is warranted for PTSD when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411.
A 70 percent evaluation is warranted where there is objective evidence demonstrating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to suicidal ideation; obsessional rituals which interfere with routine activities, speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, or effectively; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, including work or a work-like setting; and the inability to establish and maintain effective relationships.
A maximum 100 percent evaluation is for application when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id.
The Board notes that the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, the VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including (if applicable) those identified in the DSM-IV (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)). See Mauerhan, 16 Vet. App. 436. Within the DSM-IV, Global Assessment Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). While not determinative, a GAF score is highly probative as it relates directly to the Veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. See Massey v. Brown, 7 Vet. App. 204, 207 (1994).
According to DSM-IV, a GAF score of 31 to 40 indicates some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood, (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). A GAF score of 41 to 50 indicates serious symptoms (e.g. suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF score between 51 and 60 indicates that the Veteran has "moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers)." GAF scores ranging between 61 and 70 reflect "some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships." A GAF score of 71 to 80 indicates, if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). See DSM-IV.
In a private mental health treatment record dated in August 2006, the Veteran's appearance was noted to be normal and appropriate. He was oriented times three. His general behavior was slightly withdrawn and avoidant, but within normal limits. His speech was somewhat soft and his thought processes were within normal limits. His mood was generally anxious. His affect was constricted. He complained of memory deficits. A GAF score of 55 was assigned.
On VA psychiatric examination in June 2007, the Veteran was observed to be clean, well-groomed and appropriately dressed. He appeared somewhat anxious and psychomotor agitation was moderately present in that he shifted frequently in his chair. His facial expressions were often serious and he became tearful at times. However, over the course of the interview, he displayed a full range of appropriate affect. He was friendly and cooperative throughout the interview. His voice was well-modulated and his speech was normal in rate. He was oriented to person, place and time and his answers were logical and relevant to the questions asked. There was no evidence of psychosis and he denied all symptoms of same. Attention and concentration were good and there were no noticeable deficits in immediate, recent or remote memory. He denied suicidal ideation or homicidal ideation. A GAF score of 65 was assigned.
In a July 2008 letter from the Veteran's private mental health provider, it was noted that the Veteran had been in individual and group therapy. It was stated that due to the combination of medical problems and PTSD, the Veteran was not able to return to work.
In a December 2008 letter from the Veteran's private mental health provider, it was noted that the Veteran had been transferred to another clinic for treatment. The provider stated that the last time he saw the Veteran was September 17, 2008 and that at that time, he was highly agitated, and had been experiencing panic attacks. His affect was constricted and flat and his cognition was disorganized and underproductive. The provider felt that the Veteran's mental status had been deteriorating. He estimated that his GAF score at the time of discharge was 49. His isolation in particular, had been getting more profound and a concern to those around him.
A February 2009 statement was received from the Veteran's significant other. She reported that the Veteran used to be very outgoing and even tempered. She indicated that as time went by he started to become reclusive and withdrawn. She stated that he has a difficult time sleeping and that he often cries or yells while asleep. The Veteran frequently checked to ensure that the house was secure. She also stated that the Veteran was not as patient and that he appeared to be more withdrawn. She noted that the Veteran remained employed for a long time because he drove a truck and was on the road by himself.
VA treatment records dated from October 2008 to March 2009 show that the Veteran was participating in group and individual counseling for PTSD. In a December 2008 assessment, the Veteran reported suffering from depression and a down mood. He reported having a loss of appetite, loss of memory due to impaired concentration and occasional anxiety. He tended to avoid others. On mental examination, his affect was constricted and his mood was sad. There was no evidence showing impairment in insight, judgment or intelligence. There was no evidence of suicidal or homicidal ideation, hallucinations or delusions. In a March 2009 group therapy record, it was noted that the Veteran did a good job in sharing his thoughts and feelings. He accepted feedback appropriately and demonstrated support for others. His attendance had been consistent. It was noted that he was benefitting from group therapy.
In a February 2010 VA mental health treatment record, the Veteran reporting having nightmares, depressed mood, anhedonia, decreased motivation, sleep deprivation, avoidance of any reminders of traumatic events, social detachment, intrusive thoughts, hypervigilance and irritability. Mental status evaluation revealed that the Veteran was polite, cooperative and was help seeking. He was casually attired and exhibited appropriate grooming and hygiene. He was not able to sustain direct eye contact, though he was generally easy to engage with questions. He was oriented to person, place, time and situation. His mood was anxious and depressed. His affect was blunted. His speech was normal in tone, volume and prosody. His remote, recent and immediate memory appeared grossly intact. He denied any history of psychiatric hospitalizations. He denied any history of suicide attempts. He was assigned a GAF score of 42.
On VA examination in September 2010, the Veteran related that he has learned to manage his anger and irritability and to limit his temper tantrums. Overall, his mental health functioning was described as consistent with previous examination and further physical health decline. On mental status examination, he was noted to be clean. His psychomotor activity was unremarkable. His speech was unremarkable, clear and coherent. His attitude was cooperative and friendly. His affect was normal. Hs mood was good. His attention was intact. He reported difficulty focusing when driving. He was intact to person, time and place. His thought process and thought content were unremarkable. There were no delusions. His did have sleep impairment. There were no hallucinations. He did not display any inappropriate behavior. He did not display any obsessive/ritualistic behavior. He reported having panic attacks a few times per week but they were brief (not more than a few moments). There were no homicidal or suicidal thoughts. His impulse control was fair. He did not have episodes of violence. He had the ability to maintain minimum personal hygiene. His immediate, recent and remote memory was normal. A GAF score of 65 was assigned for PTSD. The examiner felt at the Veteran's PTSD signs and symptoms were transient or mild with decrease in work efficiency and ability to perform occupational tasks only during periods of significant stress.
On VA examination in December 2013, the Veteran reported that he continued to be a relationship for 37 years and that it was "going real good - just living." He maintained contact with members of his family. He had limited social activity. He had a few friends. He enjoyed hobbies such as snorkeling, gardening and doing some woodworking. The examiner noted that his PTSD symptoms were manifested by: depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. On mental status examination, the Veteran demonstrated no impairment of thought process or communication as well as delusions or hallucinations. His eye contact and interaction during the session were within normal limits. He denied both suicidal and homicidal thoughts. He endorsed a good history of maintaining minimal personal hygiene and other basic activities of daily living. He was oriented to person, place and time. He denied significant memory loss or impairment, obsessive or ritualistic behaviors, panic attacks, and impaired impulse control. The rate and flow of his speech was within normal limits. He endorsed some sleep impairment. The examiner stated that the Veteran's PTSD was manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The examiner opined that the Veteran's PTSD continued to be stable and of a moderate severity over time, as per the Veteran's self-report during the interview, review of the mental health treatment records, and current psychological testing results.
On VA examination in February 2015, the Veteran reported that he continued to be in a long-term relationship. He maintained contact with family members and had a few friends. He maintained his hobbies. The examiner noted that his PTSD symptoms were manifested by: depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships. On mental status examination, the Veteran demonstrated no impairment of thought process or communication as well as delusions or hallucinations. His eye contact and interaction were within normal limits. He denied both suicidal and homicidal thoughts. He endorsed a good history of maintaining minimal personal hygiene and other basic activities of daily living. He was oriented to person, place and time. He denied significant memory loss or impairment, obsessive or ritualistic behaviors, and impaired impulse control. The rate and flow of the Veteran's speech was within normal limits. He endorsed some sleep impairment. The examiner stated that the Veteran's PTSD was manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The examiner opined that the Veteran's PTSD continued to be stable and of a moderate severity over time.
VA mental health treatment records dated from January 2014 to January 2016 document ongoing group and individual counseling for PTSD. The Veteran primarily related symptoms of avoidance, anxiety, re-experiencing and sleep troubles.
Prior to September 17, 2008
Prior to September 17, 2008, the Board finds that the 30 percent rating is appropriate. A higher 50 percent rating is inapplicable during this time period due to the fact that there was no evidence of more severe social and occupational impairment warranting such a higher rating. Importantly, the Veteran reported ongoing symptoms of depression and anxiety. However, his attention and memory were generally within normal limits. He denied any history of suicidal attempts. There was no evidence of flashbacks or panic attacks. Overall his disability picture does not reflect functional impairment comparable to social and occupational impairment manifested by reduced reliability and productivity. Thus, a rating higher than 30 percent for PTSD prior to September 17, 2008 is not warranted.
From September 17, 2008
The evidence does not demonstrate that the Veteran meets the criteria for a rating in excess of 50 percent from September 17, 2008, because his PTSD symptoms have not been shown to be productive of functional impairment comparable to occupational and social impairment with deficiencies in most areas. 38 C.F.R. § 4.130, Diagnostic Code 9411. The evidence from this time period shows that the Veteran's PTSD was manifested primarily by depressed mood, anxiety, panic attacks and chronic sleep impairment. The Veteran maintained relationships with his significant other, family members and a few friends. The Board additionally notes the Veteran's hygiene was consistently described as good during the time period in question and his speech was consistently described as normal. Thus, a rating higher than 50 percent from September 17, 2008, is not warranted.
The Board has also considered the Veteran's lay statements regarding the severity of his service-connected PTSD. The Board acknowledges the Veteran's belief that his symptoms are of such severity as to warrant higher ratings for the disability; however, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. While the Board finds the Veteran competent to provide evidence as to his symptoms, the medical findings, which directly address the criteria under which the service-connected disability is considered, are more probative than his assessment of the severity of his disability, particularly as he does not address the findings necessary to evaluate the disabilities under the rating criteria. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).
The provisions of 38 C.F.R. § 3.321(b) provide that where the disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the Veteran for the service-connected disability, an extra-schedular evaluation will be assigned. Consideration of whether a claimant is entitled to an extra-schedular rating is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111, 115 (2008).
The first step is to determine whether the "evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Id. If the adjudicator determines that this is so, the second step of the inquiry requires the adjudicator to "determine whether the claimant's exceptional disability picture exhibits other related factors," such as marked interference with employment or frequent periods of hospitalization. Id. at 116. Finally, if the first two steps of the inquiry have been satisfied, the third step requires the adjudicator to refer the claim to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether an extra-schedular rating is warranted. Id.
In this case, the Board finds the evidence in this case does not present such an exceptional disability picture that the available schedular evaluations for the service-connected PTSD are inadequate. In this regard, the Board notes that the rating criteria reasonably describe the claimant's disability levels and symptoms. Thun, 22 Vet. App. at 115. Accordingly, referral for consideration of an extraschedular rating is not warranted.
The Board notes that under Johnson v. McDonald, 762 F.3d 1362 (2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, after applying the benefit of the doubt under Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional symptoms of record that have not been attributed to a specific service-connected condition. The Board notes that the evidence does not indicate, nor has the Veteran alleged, that this is a circumstance where extra-schedular consideration is required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. Accordingly, the Board finds that referral for an extraschedular rating is not warranted based upon the combined effect of multiple conditions.
TDIU
Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1) (2016). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability: that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. In such an instance, if there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. §§3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993).
In this case, as noted above, the Veteran's PTSD is evaluated as 30 percent prior to September 17, 2008 and as 50 percent disabling thereafter, and the Veteran does not have any other service-connected disabilities. Thus, he does not meet the scheduler criteria for an assignment of TDIU in this case. See 38 C.F.R. § 4.16 (a). However, regardless of whether the Veteran meets the schedular criteria, the Board has determined that referral for extra-schedular consideration for TDIU under 38 C.F.R. § 4.16 (b) is also not appropriate in this case. The reasoning is as follows.
While it is clear that the Veteran has some occupational and functional impairment as a result of his psychiatric disability, the evidence does not support that the Veteran's PTSD precludes him from securing and following a substantial gainful employment. Here, the evidence shows that the Veteran has college degrees in both civil engineering and business administration. He has held multiple jobs over the years and his last employment was that of a truck driver. The Veteran reported that he stopped working in July 2006. He states that he decided to work as a truck driver because it suited his social temperament but he could not drive any longer because he was experiencing "road rage." However, the record also shows that he injured his shoulder in May 2006 and has not worked since this time. A disability determination from the SSA determined the Veteran to be disabled due to nonservice-connected osteoarthrosis and allied disorders and disorders of the back. Moreover, on VA examination in December 2013, the Veteran reported an interest in doing "one more construction job - build a bridge, an overpass or interchange." He reported that he would expect to manage the people fairly well. The examiner concluded that the Veteran's PTSD would not render him unable to secure or follow substantially gainful employment.
Consequently, the Board finds that the evidence of record does not demonstrate that the Veteran is unable to secure and follow a substantially gainful employment as a result of his service-connected disabilities at this time. Therefore, a referral for extraschedular consideration of TDIU under 38 C.F.R. § 4.16(b) is not appropriate in this case. See 38 C.F.R. §§ 3.102, 4.16(b).
In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal.
See 38 U.S.C.A. § 5107(b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).
ORDER
Entitlement to an initial rating in excess of 30 for PTSD prior to September 17, 2008, and in excess of 50 percent thereafter, is denied.
Entitlement to a TDIU is denied.
______________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs